Clamping on Private Land
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This page deals with clamping by private firms, not councils. (Private clamping is illegal in Scotland).

The key points are:

       A Guide to Clamping on Private Land in England and Wales

CLAMPING/TOWING/BLOCKING IN ON PRIVATE LAND

Introduction
This document started after a few colleagues of mine were clamped at work. I wanted to check out the legality of clamping and find out what, if any, remedies there were. As I started trawling various forums and looking at the issues there was a distinct difficulty in trying to find answers. The information was there but not in anyone place.

This guide covers clamping on private land only and not on the public highway.

A good starting point in understanding your rights and the obligations of the clampers is contained in the Citizens Advice Bureau’s excellent advice guide.

You can find it at http://www.adviceguide.org.uk/t_whee...ivate_land.pdf.

However the guide has very little background and is necessarily brief. This document seeks to fill in the blanks and provide further information.

The Security Industry Authority refers to clamping as vehicle immobilisation. This can also mean towing away or blocking in. As these are all related remedies for trespass I will use the term interchangeably in this document.

The document includes my recommendations on what to do if you are clamped and what remedies you can seek. The list of remedies is not exhaustive and should not be treated as such.

October 2009: Clamped on Land You Own or Rent
I have seen a number of questions regarding tenants/owners of private dwellings with shared car parks wanting to know the situation regarding clamping. This is often in response to a landlord/property factors bringing in a clamping firm. I have done a bit of research into trespass and garnered opinions from various sources and put something together on this topic. This information is contained in Appendix A at the end of the guide. Please note that my solutions are just suggestions and you should verify the legality of any action before embarking on it. See the disclaimer below. 

January 2010 Updated

I have added an appendix listing the more useful references used in writing this guide.  I’ve also added some discussion on criminal damage to a clamp.  There are some other minor amendments and clarifications.   

Disclaimer
Please note that I am not a lawyer and the following should not be construed as legal advice. While I have set out to be accurate the information could contain errors or omissions.

Any advice given is of a general nature and I will not accept liability for costs incurred for using any part of this guide. You should seek legal advice before embarking on any course of action recommended.

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Background and Legal Basis for Clamping

Clamping began in the 1980s as a controversial statutory measure to deter illegal on-street parking in Central London. It was the success of that measure and its extension to other congested city centres which encouraged its use by private landlords and the proliferation of clamping companies willing to carry out that work on their behalf. But whereas on-street clamping was tightly regulated with specific procedures, rights of appeal and controls over the amount of release fees, the opposite was true of private clamping, which was completely unregulated and a product of the common law.

The common law principle that clamping uses is a medieval remedy for trespass called damage distress feasant. This principle basically put is that something may be detained until damages have been recovered or satisfaction be rendered for injury they have done. In the past this principle was applied amongst other things for trespass of livestock. If someone’s livestock strayed onto someone else’s land and caused damage, the landowner was entitled to keep hold of (distress) the livestock until damages were paid. In the same way clamping involves keeping hold of (distressing) your car until you pay for the damages you have caused in parking where you have. This remedy also applies to towing a vehicle away.

Trespass is part of the legal system of torts. Under tort, damages are sought to restore a party to original position as best they can before commission of the tort. They are therefore punitive in nature. Contrast this with damages arising from breach of contract. Contract damages seek to put a wronged party in the position where they would have been had the contract been performed. They must not be punitive.

Clamping is illegal in Scotland thanks to a 1992 court ruling. In BLACK v CARMICHAEL (1992- S.C.R 709) it was decided that the clamping of a vehicle and the demanding of a release fee amounted to extortion and theft.

In England and Wales a different approach was taken. A Court of Appeal decision in 1995 gave clear guidance. The Case of ARTHUR v ANKER (Times Law Reports 1st December 1995) produced a landmark decision


On the 6th May 1992 David Arthur knowingly parked his car in a private car park belonging to commercial leaseholders for around 45 minutes whilst visiting the nearby local authority planning department. In doing so he disregarded a prominent notice warning that unauthorised vehicles would be wheel-clamped and a £40 release fee charge.

On returning to his vehicle he saw the inevitable clamp. He refused to pay any release fee and made an unsuccessful attempt to remove his own vehicle with a pick up truck – which led to an altercation between his wife and the clamper, Thomas Anker, which led to Mr Anker claiming he had been assaulted by Mr Arthur’s wife.

In the early hours of the following morning, Mr Arthur returned to the car park and succeeded in removing the two clamps, which had immobilised his vehicle, before driving away. Unfortunately this did not satisfy Mr Arthur who went on to sue Mr Anker for trespass to his vehicle. In rejecting Mr Arthur’s claim, the Court of Appeal laid down the principles of law which now govern modern wheel clamping.

These are:

• Where warning notices are prominently displayed, any motorist who parks a vehicle in defiance of that notice will be deemed to have consented to the clamping of his/ her vehicle and its subsequent detention until a release fee is paid.(implied consent)
• The amount of the de-clamping fee must be reasonable.
• Arrangements must be in place to enable the prompt release of a vehicle once the vehicle owner has indicated that s/he is willing to pay the release fee.

There remains uncertainty as to what constitutes a "reasonable release fee". In VINE v LONDON BOROUGH OF WALTHAM FOREST (Times Law Reports 12th April 2000), the original trial judge had regarded a release fee of £105 as reasonable- although the Court of Appeal later ruled the clamping illegal on other grounds.

On the morning of 6th March 1997 Ms Vine had been undergoing hospital treatment. She felt unwell and therefore parked her car (on private land) in order to leave the vehicle and be sick. She did not see the clamping signs, which were displayed. On returning a few minutes later she found that her car had been clamped. Under protest, she paid the release fee by credit card, but, assisted by the Automobile Association, she successfully sued for a refund.

The lesson from Vine is that even when signs are prominently displayed, a motorist who has not seen them cannot have consent to a vehicle being clamped. An underlying principle is that it is not only objective judgement must be exercised but also subjective judgement as well. Even if the signs are seen they have to be read and understood.

Also in amongst the judgement from Vine was a ruling on a reasonable release fee. In the original case a release fee of £105 was deemed reasonable. That amount today, taking into account inflation using the retail price index as a guide, would now equate to roughly £138 (March 2008).  However it is worth pointing out that often the damages awarded for trespass are nominal.  Bearing in mind that tort law is not designed to enrich the wronged party but rather to put them in the position they would have been in had the tort not occurred, it could be argued that many of the release fees are disproportionate to the actual damage suffered. 

These two cases decided that clamping in England and Wales by private companies was legal and provided a certain framework to govern the activities of the clampers. However with numerous cases of clamps being applied illegally when cars were legitimately parked, cases of intimidation, assault, threatening behaviour on or by the clampers it soon became clear that there was something wrong. Rightly or wrongly an act of parliament sought to correct the imbalance but instead of outlawing clamping as a remedy to unauthorised parking on private land it instead gave it cloak of legitimacy. It was lumped in with the Security Industry Act.

The Private Security Industry Act and The Security Industry Authority

In 2001 the Private Security Industry Act was passed. This has been amended and was finally enacted around 2004. The Act sets out some very strict rules for those wishing to engage in Vehicle Immobilisation (Car clamping/towing/blocking in) involving a release charge and list some pretty stiff penalties for breaches including fines up to £5000 and 5 years in jail.

Part of the act authorised the setting up of an administrative body to oversee the licensing of Security Industry Operators and staff. This body is the Security Industry Authority. The Security Industry Authority (SIA) has a website (https://www.the-sia.org.uk/). You can obtain links to all the relevant legislation relating to the SIA. More importantly you can perform an online check to verify the license of any SIA licensed individual.

Licenses fall into two categories – frontline and non-frontline. Frontline licenses are required by all staff who will be undertaking day to day security duties including vehicle immobilisation.

Non-frontline licenses are required by the principals of firms whose employees undertake duties licensable under the PSI act.

Landowners have a responsibility to ensure that anyone performing vehicle immobilisation for a fee on their land is licensed by the SIA. There are pretty stiff penalties for landlords (and I guess this would mean CEO or directors if it’s a registered company) if they allow unlicensed operators to immobilise vehicles on their land on their behalf (i.e. acting as their agent).

The SIA do not regulate

• the amount of the release fee
• the time taken to release a vehicle
• the adequacy of signage around the site warning that vehicles may be immobilised
• the complaints procedure of the company employing the vehicle immobiliser

They SIA advise that :

“If a vehicle immobiliser uses threatening behaviour or intimidation they may be committing a criminal offence and we would recommend that you report such instances to the police”.

The SIA's remit covers the individual undertaking the licensable activity.

The PSI Act sets out that:

• The person immobilising the vehicle must be licensed by the Security Industry Authority.
• The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
• Upon payment a receipt must be issued. The receipt should contain the:
  • the name of the license holder
  • the signature of the license holder
  • the license holders SIA License number
  • the location where the vehicle was clamped or towed
  • the date when the vehicle was clamped or towed

Further terms for vehicle immobilisers were set out in The Private Security Industry Act 2001 (Licenses) Regulations 2007.

These are

1)A vehicle must not be clamped / blocked / towed if:
a)A valid disabled badge is displayed on the vehicle.
b)It is an invalid carriage
c)It is a marked emergency service vehicle which is in use as such.


In The Private Security Industry Act 2001 (Licences) Regulations 2007

• “invalid carriage” has the same meaning as in section 253(5) of the Road Traffic Act 1960;
• “disability badge” means a badge issued under section 21 of the Chronically Sick and Disabled Persons Act 1970; and
• “Emergency vehicle” has the same meaning as in regulation 3(2) of the Road Vehicles Lighting Regulations 1989.

Any firm who does not comply with the above is in breach of the Security Industry Act and can be prosecuted..

Unlicensed Clamper
It is also an offence to knowingly employ unlicensed clampers. Landlords can be fined up to £5000 and/or be jailed for up to 6 months per offence. 

Other License Conditions 

Front line staff must:

• Wear the licence where it can be seen at all times when engaging in designated licensable activity (unless you have reported it lost or stolen, or it is in our possession)*.
• Tell us and the police as soon as practical if your licence is lost or stolen
• Tell us as soon as practical of any convictions, cautions or warnings, or charges for relevant offences whether committed in the UK or abroad
• Tell us of any changes to your name or address as soon as practical
• Not deface or change the licence in any way (should your licence become damaged, you should advise us and request a replacement).
• Not wear a licence that has been defaced or altered in any way
• Produce the licence for inspection on the request of any constable, any member or employee of the SIA or other person authorised by the SIA
• Return the licence to us as soon as practical if you are asked to do so
• Tell us as soon as practical of any change to your right to remain or work in the UK

*You do not have to wear your licence where it can be seen if you can demonstrate that the nature of your conduct on that occasion requires that you should not be immediately identifiable as someone engaging in such conduct. On such occasions you must carry your licence on you and be able to produce it on request. This condition allows store detectives or close protection operatives to perform licensable activities without the need to be identifiable. The covert licence condition cannot apply to vehicle immobilisers.

Camera Operatives need to be Licensed?

The following is taken from the notes of the Vehicle Immobiliser Network Meeting 20th March 2009.  (Thanks to Blessed Beard over at Pepipoo for this one.)

5. Will the SIA allow trained vehicle immobilisers who have not yet received their licence to shadow a trained and licensed VI to get some training ‘in the field’? Bad experiences can scare off new vehicle immobilisers, so the money spent on their training and licensing is wasted. 
The Private Security Industry Act 2001 says that “activities carried out in connection with” a licensable role should be licensed. Therefore if someone is accompanying the licensed vehicle immobiliser, observing the process, they would need an SIA licence. Although it could be argued that ‘in connection with’ is down to interpretation, it would be up to a court of law to decide. 

Valid Clamping?

Under the PSI Act and existing case law for clamping to be valid the following must be present or take place

1)There must be clear and prominent signs indicating a vehicle may be immobilised.
2)The signs should contain
a)A number at which an offer to pay the release fee can be made
b)The amount of the release fee (which should be reasonable)
3)Upon an offer to pay or payment being made the vehicle must be released in a reasonable amount of time
4)The person immobilising the vehicle must be licensed by the Security Industry Authority.
5)The person immobilising or releasing the vehicle must have their Security Industry Authority identification badge on display.
6)Upon payment a receipt must be issued. The receipt should contain the:
a)the name of the license holder
b)the signature of the license holder
c)the license holders SIA License number
d)the location where the vehicle was clamped or towed
e)the date when the vehicle was clamped or towed

What to Do If You are Clamped

1. Keep calm, however distressing it may be, getting angry or upset will do you no good and it may get you arrested.
2. Take a note of any signage. It should be clear and visible. Look particularly at entrances/exits.
3. If you have a digital camera take pictures of any signage. Is it readable from where you stand? Was it prominently displayed where you came in?
4. If you have the ability record/make notes of anything said or done by the clampers. Particularly record or note any threatening or intimidating comments or behaviour.
If they demand extra because a tow truck has been called out refuse to pay and call the police. They must release once an offer to pay is made.
5. Ask to see the clampers SIA I.D. If they cannot produce it call the police. They are possibly unlicensed and thus committing an offence under the PSI act.
6. Pay on a credit card if you can or by cheque.
7. Do not offer any physical violence to the immobilisers you are liable to be arrested.
8. Do not damage a clamp (i.e. cut it off). You leave yourself open to a charge of “criminal damage” if you do. (There is some debate over whether if you found a clamping to be wrong e.g no signage whether you would be entitled to end the tort by a "self help" method e.g. bolt cutters. You have to make a judgement call). All that said proving a charge of criminal damage may not be that easy.
9. If you can remove the clamp without damaging it then you can do so.
10. Make sure you get a full receipt with all the required details
11. Check that the clamper is licensed on the SIA website.
12. If they are demanding a towing fee for a tow truck turning up or being called but not actually towing refuse to pay anything other than the release fee.

Can I Recover My Money?

Unfortunately there is no one clear path to go down to seek redress if you are clamped. More often than not you will have been forced to pay to have your car returned – regardless of whether the immobilisation is legal or not. Unless the firm in question is grossly in breach of the PSI Act then the only path left open to you is to attempt a civil recovery. This will need to be done via letter at first and if that fails then through the county court on the small claims track.

One final point is that these firms are often fly-by-night outfits. If you are seeking redress you should sue the clamping firm and the landowner as co-defendants. (landowner details can usually be obtained from the land registry. (www.landregistry.gov.uk).

Damages claimed for trespass must be paid to the landlord so unless the clampers and the landowner have a water tight agreement they may be acting unlawfully.

Stopping or Reversing Payment

If you have paid by cheque or credit/debit card there may be avenues open for to try and get the payment stopped or reversed.

If you can pay by cheque then do not put any guarantee information on the back. The simple thing to do is ring your bank and have a stop put on the cheque. It may cost you a small fee to do so but its better than a large amount. I suspect that most clamping companies will be unwilling to accept payment by cheque for this very reason.

If you paid by credit card or debit card then you could, reasonably in my opinion, claim that you were forced to pay under duress and that the transaction is invalid.

It may be that your bank or credit card company will be unwilling to do anything to help you. If that is the case then the your only remedy is recovery through the civil courts

Gather Evidence

Before attempting any recovery you need to gather evidence of any failures to comply with either the SIA legislation or the case law given under Vine or Anker.

Signage

One of the most common causes of complaint is the lack of adequate signage. Arthur Vs Anker clearly states that a sign must be present. Vine further enhances that by saying it must be seen and understood. If the signage is clearly posted and you’ve parked in clear violation then you’d better have a pretty good reason, such as in the Vine case, to bring a claim against the firm that clamped you.

However that said signage is often missing, inconspicuous or unreadable. Many posters on the consumer action group forums have mentioned that poor lighting as a reason for the signs being missed.

One “pay for a solution” website I have seen suggests that a guidance point for the visibility of signs is the Road Traffic Act 1991. As there is no guidance for size of no parking signs or their placement on private land other than the case law that they should be clear, visible and understood you could use the guidance on public land as a reference. Whether a court would accept this is debatable.

Excessive Charge

There is no legal limit to the amount that can be charged for a release fee. The Vine case said that a reasonable amount in 1997 was £105. This roughly translates to £138 in today’s terms (based on the CPI and rate of inflation March 200. It would be worth consulting a lawyer with a view to court action if you’ve paid significantly more than this. However this figure is a guideline and even if you’ve paid less than a court may decide it is still to high.

Not Licensed By The SIA

If the immobilisers are not registered it may render the clamping invalid and therefore you should be able to seek a refund. It may be that attempting a bargain along the lines of refund my money and I won’t report this breach will be effective. Bringing pressure to bear on the landlord may also bring results. In my view you would do better to report the matter to the SIA and seek redress via the courts as the clamping should not legally have taken place and by that reasoning no release fee should have been due. In performing the unlicensed clamping they have broken the law and both they and the landowner can be fined up to £5000 and/or be jailed for up to 6 months per offense.

Summary

It would seem the clampers have it going for them – at least initially. They get your money and backing in some cases from the Police. Knowing your rights will help you seek redress is through the courts.

I hope this guide will help.

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(A copy of this guide can also be found at Blogspot:Clamping Guide)

Appendix A: Residential Parking and Clamping

Introduction

This section is to deal with what is becoming a very real problem. More and more property managers, landlords and so on are looking to respond to resident complaints about people parking in their spaces and are often times bring in clamping firms to deal with the problem.

Clamping is a remedy for trespass. Bearing in mind that trespass is to enter wrongfully or without proper authority or consent upon the real property of another, it does (or should) present problems for using clamping in a residential setting. The key element is “wrongfully or without proper authority or consent”. That consent or authority comes from either two sources the landlord (usually through a lease or rental agreement) or a title deed (i.e. you own the land and the parking space).

Guidance if your accommodation includes a parking space (ownership, rental agreement, lease)

I have seen information being sought by a number of people who own accommodation that includes a car parking space. The normal situation is that the estate management or property factors decide to bring in clampers to control the parking situation. In some cases this is at the residents behest but I have seen cases where this was done without the residents knowledge or consent.

You cannot be deemed to have trespassed if you have proper authority or consent. If your title deeds, lease or rental agreement specifically mention a car parking space then as far as that is concerned you have consent to park in that space. There may be conditions imposed, particularly in a rental situation that should you breach may cause the consent to be withdrawn. You would need to check the documentation carefully.

Permits or No Permits.

Often management companies will seek to impose a system of permits. Any car not displaying a permit gets clamped. As a general rule this cannot simply be imposed. In the case of a new scheme then this would amount to a unilateral change of contract or an attempt to make you party to a contract. This simply cannot happen. Both need your agreement.

In the case of moving into an existing scheme as a tenant unless the rental/lease agreement makes it clear or you sign something specific then again you are not obligated to participate.

It may be you like the idea of a permit scheme and want to participate in it. At face value it presents a low cost option. But what happens when you, who have a perfect right to park, forget to display your permit and are clamped. Are you really liable for the release fee? Not so attractive now is it? I would suggest that there are more cost-effective and less stressful methods of preventing people parking where they shouldn’t. I will detail some later.

For anyone facing a permit scheme I would advise you opt out. You don't need to be confrontational. A polite discussion will probably achieve more. However I would put all of the above in writing as well and send it via recorded delivery. That way he you have a record that you notified all parties concerned.

Your letter should include the following points and be addressed to the clampers and the landlord/ management company/property factors

1. That you reject their permit scheme
2. Advise them that you will expect an immediate and full rebate of any release fee paid should your vehicle be clamped and any incidental expenses incurred.
3. Advise them that if your vehicle is clamped, you will be seeking damages for trespass, harassment and loss of enjoyment of the property.

Clamped in Your Own Space?

If you are the landowner then and this is ignored then they are in violation of the Private Security Industry Act 2001. They must have landowner permission to clamp. If they enter your land to clamp your vehicle they become guilty of trespass themselves and you would certainly have an actionable case against them and whoever employed them. You can, and should report them to the police and the Security Industry Authority.

If you are tenant you may have grounds to seek damages from the landlord for loss of “peaceful enjoyment of the property”. (Human Rights Act 1998. You need to check your agreements carefully. They may be guilty of harassment under the Protection from Eviction Act 1977 (C43 1.1.3). To enter your property a landlord or his agent must give 24 hours written notice and have your permission. Tenants need to confirm that they have a parking space specifically allocated to them and that they have not inadvertently agreed to clamping. If you haven’t agreed to this then effectively you are in the same situation as a landowner and could have an actionable case against them for trespass.

If you find yourself in the position of being clamped in a space that you own or rent then it is my opinion that you would be in a position to persue a self-help remedy to remove the clamp. Alternately you might want to call the clamping company, advise them of the situation and get them to release you. They may of course refuse. Complaints to the police may prove effective as they have interfered with a motor vehicle.

Communal Parking - Renting

This is harder to advise on. It is very much dependent on your lease/rental agreement. But essentially if you have permission to be there then you cannot be trespassing.

Alternatives to Clamping

One of the best alternatives I’ve seen is one that empowers the owner/renter of a parking space to control access. It is the raisable bollard/post. These can be locked into position and prevent access when your car is not there. These are relatively low cost (probably lower to buy and install than the average clamping release fee) solutions to implement and mean the a lot less hassle and stress you.

Remedies

Talking is good. Quiet negotiation may achieve more than shouting and yelling. A quiet polite letter stating your case may help. If not you have the alternative of going to court - having sought legal advice first. 

Appendix B: Sources and References 

Lloyd vs DPP 1992

Arthur vs Anker

Vine vs LBC Waltham Forrest

The Private Security Industry Act 2001

The Private Security Industry Act 2001 Regulations 2007

The Security Industry Authority